Erik Luna, Colloquy Essays, The Bin Laden Exception:

ABSTRACT—Osama bin Laden’s demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the “war on terror,” with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorism related fears have distorted the people’s risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and intrusive pat downs to screen airline passengers with little evidence that the terrorist risk has been meaningfully and efficiently reduced as a result. The TSA regime also clashes with core constitutional values and decent understandings of the Fourth Amendment. To date, however, the courts have been deferential to the government. Although the decisions rehearse established exceptions, they are indicative of an entirely new constitutional exception grounded in irrational fears of terrorism.

An earlier version of this Essay was published in the Northwestern Uniersity Law Review Colloquy on February 21, 2012, 106 NW. U. L. REV. COLLOQUY 230 (2012), http://www.law.northwestern.edu/lawreview/colloquy/2012/3/LRColl2012n3Luna.pdf.

Defendant’s car was stopped for littering from the passenger side, and the passenger made a “snide” comment to the officer denying littering. The officer ordered him out of the car, and then could see a bit of a plastic bag protruding from his front pocket. That was reasonable suspicion and not probable cause. People v. Garcia, 2012 IL App (1st) 102940, 978 N.E.2d 366 (September 28, 2012):

[**P13] Nevertheless, even if Officer Romano had observed a clear knotted plastic baggie protruding from defendant's front pants pocket, this observation may have created a reasonable suspicion justifying further investigation, but such an observation standing alone generally does not rise to the level of probable cause. See, e.g., Cauls v. Commonwealth, 683 S.E.2d 847, 852 (Va. Ct. App. 2009) (deputy's observation of knotted and frayed end of plastic baggie protruding from defendant's pants pocket, standing alone, not sufficient to provide probable cause under the plain-view exception because the baggie's incriminating character was not immediately apparent).

[**P14] Suspicion is not a substitute for probable cause. See Hunter v. Bryant, 502 U.S. 224, 232 (1991) (Stevens, J., dissenting); see also People v. Symmonds, 18 Ill. App. 3d 587, 595 (1974) ("[t]he Illinois Supreme Court has said that the subjective belief of a police officer that an envelope contained in the pocket of a traffic offender contained gambling devices was an insufficient basis for a search of the envelope where it was not predicated upon other objective facts, such as something about the envelope itself or its visible contents which gave the police an indication of their illicit nature") (citing People v. Tate, 38 Ill. 2d 184, 187 (1967))).

Where the officer at trial contradicted the affidavit for search warrant and suppression hearing testimony, and the prosecutor knew it was going to happen shortly after the jury was sworn, there was [arguably] a Brady violation, and defense counsel could have immediately moved for a continuance to develop the issue and potentially move for a mistrial because of Franks. (On this record, however, both the Brady and Franks issue fail on appeal because they are fully developed. At trial, the defense got full cross-examination of the contradictions.) United States v. Wilson, 2012 U.S. App. LEXIS 20417, 2012 FED App. 01036N (6th Cir. September 27, 2012):

Because the government learned during trial that Officer Petrich's testimony would not be consistent with the search warrant affidavit he signed under oath or with his report, the government violated Rule 16(c) by failing to disclose this development to the defense immediately. See United States v. Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). Two of the Zuern factors favor Wilson's motion for a mistrial because the government solicited Officer Petrich's trial testimony and the government's line of questioning was not reasonable where the defense was not given previous notification of the changed testimony. The remaining three factors, however, favor the government. Wilson did not contemporaneously object or seek other relief, he did not prove that the government acted in bad faith, and the details concerning Wilson's walk with the informant was only a small part of the trial evidence presented against Wilson.

Defense counsel did not ask to approach the bench when the changed testimony first came to light. Had counsel objected and asked for a sidebar, the district court might have granted Wilson a continuance to prepare to meet the changed testimony, or the court might have interrupted the trial to allow Wilson an opportunity to make a motion to suppress and challenge the search warrant and affidavit under Franks v. Delaware, 438 U.S. 154 (1978). See Fed. R. Crim. P. 16(d). If the district court had found a violation under Rule 16(c), Brady, or Giglio, the court might have excluded the evidence seized from 613 Thomson Apartment 2 as a sanction for the violation. But defense counsel did not object, ask for a continuance or sanctions, or request a Franks hearing.

Even if defense counsel had asked for a Franks hearing during trial, however, Wilson would not have prevailed. ...

Letters To My Country: The White Fourth Amendment:

In 2010, Paul Butler published a law review article entitled The White Fourth Amendment, (citation is [43 Tex. Tech. L. Rev 245 [not online for free]], for those of you with access to Westlaw or Lexis). In the article, Butler explains how legal rules established by the Supreme Court over the past fifty years have created a substantive body of law for police conduct that leads inextricably to racially disparate policing. What follows is an excerpt from the article in which Butler describes the facts from a case called Immigration & Naturalization Service v. Delgado, in which mostly Mexican factory workers were searched based on a hunch by INS agents that the factory was populated by illegal immigrants. What occurred in that factory provides an excellent case study of how exactly a “White” Fourth Amendment works in practice: ...

(http://letterstomycountry.tumblr.com/post/32299419725/the-white-fourth-amendment (sorry, I can't embed the link)

Defendant lacked standing to challenge the search of a car driving in tandem with him. The stop was not overlong. The government conceded that turning on the cell phone was excessive and agreed not to use the contents. United States v. Robles, 2012 U.S. Dist. LEXIS 140381 (S.D. Tex. September 28, 2012).*

A call from a mail carrier that there was a suspicious car in the area of recent burglaries did not provide reasonable suspicion for a stop of a car the day after the last burglaries. The car was also there the day before. State v. Wolf, 317 Ga. App. 706, 732 S.E.2d 782 (2012).*

Defendant was validly stopped for walking in the center of an alley because it technically violated a city ordinance. Her consent being under duress, however, was validly raised as a target of regular stops, and the case is remanded to the trial court for further findings on that. State v. Limoli, 2012 Ohio 4502, 2012 Ohio App. LEXIS 3960 (10th Dist. September 28, 2012).*